Gray v. Formosa Case Study
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Gray v. Formosa Case Study

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Questions and Answers

According to Lord Campbell, what is not allowed by a civilized state?

Entering into a contract in a foreign country

Why is the marriage between a Jewish man from Egypt and his niece from England invalid?

Because it is prohibited by English law

What is necessary for a marriage to be recognized?

Capacity to marry in the place of domicile

What is the main problem with applying the Dual Domicile Theory?

<p>It may lead to problems with capacity to marry</p> Signup and view all the answers

What is the main advantage of the Intended Matrimonial Domicile Theory?

<p>It allows for easier recognition of foreign marriages</p> Signup and view all the answers

What is the main critique of the Intended Matrimonial Domicile Theory?

<p>It allows parties to evade restrictions imposed by their domicile</p> Signup and view all the answers

In which case was the Intended Matrimonial Domicile Theory applied?

<p>Sottomayor v. De Barros (No.1) (No.2)</p> Signup and view all the answers

What is the main reason for recognizing marriages according to the Intended Matrimonial Domicile Theory?

<p>To recognize marriages that are valid in the place of intended domicile</p> Signup and view all the answers

What is the basis for granting a nullity decree under Section 13 of the Matrimonial Causes Act, 1971?

<p>The marriage was not consummated due to wilful refusal of Respondent</p> Signup and view all the answers

When will the court not grant a nullity decree under Section 13(b), (c), or (d)?

<p>If marital intercourse with consent of the Petitioner has taken place since the discovery of the facts</p> Signup and view all the answers

What is the time limit for instituting proceedings under Section 13?

<p>One year from the date of marriage</p> Signup and view all the answers

What is the consequence of a spouse being absent for seven years?

<p>The spouse is presumed to be dead</p> Signup and view all the answers

What is the purpose of Section 33 of the Evidence Act?

<p>To declare a spouse dead after seven years of absence</p> Signup and view all the answers

What is the new status acquired after marriage?

<p>Mrs.</p> Signup and view all the answers

What is the effect of a nullity decree?

<p>The marriage is void</p> Signup and view all the answers

Under which Act can proceedings be brought to nullify a marriage?

<p>Matrimonial Causes Act, 1971</p> Signup and view all the answers

What happens if a couple intends to settle in a particular country after marriage but never does so?

<p>The courts will investigate their intentions</p> Signup and view all the answers

What is the proposed approach to dealing with marriages that are invalid under the domicile laws?

<p>A flexible approach to saving marriages</p> Signup and view all the answers

What happens if a couple's marriage is formally valid under the lex loci celebrationis but essentially invalid under the lex loci celebrationis?

<p>The marriage is invalid under the intended matrimonial home test</p> Signup and view all the answers

What is the role of the clergyman in determining the validity of a marriage?

<p>The clergyman's beliefs can influence the court's decision on the validity of a marriage</p> Signup and view all the answers

What is the main issue with the Maltese nullity decree in the Gray v. Formosa case?

<p>It was flagrantly unjust to the wife and children</p> Signup and view all the answers

What is the central issue in determining the validity of a marriage under the dual-domicile test?

<p>The couple's domicile at the time of marriage</p> Signup and view all the answers

What is essential validity in the context of marriage?

<p>The capacity of the parties to marry</p> Signup and view all the answers

What is the purpose of the intended matrimonial home test?

<p>To save marriages that would otherwise be declared void</p> Signup and view all the answers

What is the Dual Domicile Theory in the context of marriage?

<p>A theory that both parties must have capacity to marry under the laws of their domicile</p> Signup and view all the answers

In the case of Brook v. Brook, what was the issue with the marriage?

<p>The husband married his deceased wife's sister</p> Signup and view all the answers

What is the main reason why the English court refused to recognize the Maltese nullity decree in the Gray v. Formosa case?

<p>Because it offended against English notions of substantial justice</p> Signup and view all the answers

What is the significance of the lex loci celebrationis in the context of marriage?

<p>It is the law that governs the formal validity of a marriage ceremony</p> Signup and view all the answers

What is the result of not having capacity to marry under the laws of one's domicile?

<p>The marriage is invalid</p> Signup and view all the answers

What is the intended matrimonial home theory in the context of marriage?

<p>A theory that the law of the intended matrimonial home governs the essential validity of a marriage</p> Signup and view all the answers

What must be considered when bringing a decree of divorce from anywhere in the world to Ghana?

<p>If the decree was granted through judicial process or otherwise, if it is in accordance with natural justice, and if the Tribunal had a substantial connection to the parties or the place of ordinary residence of the parties</p> Signup and view all the answers

What condition must a decree of divorce meet to be recognized as valid by the Ghanaian court?

<p>It must be granted by a court that had a significant and substantial connection with the parties</p> Signup and view all the answers

What is meant by 'Significant and Substantial Connection' in the context of recognizing foreign decrees of divorce?

<p>The connection between the parties and the domicile of the parties</p> Signup and view all the answers

What is an extra-judicial body in the context of recognizing foreign decrees of divorce?

<p>A body that operates outside the normal judicial system</p> Signup and view all the answers

On what grounds would a foreign decree of divorce be refused recognition in Ghana?

<p>Fraud, lack of jurisdiction, and natural justice</p> Signup and view all the answers

What is the rule under which judgments of any country in the world are potentially enforceable in Ghana?

<p>Under the common law rule</p> Signup and view all the answers

What is a condition for recognizing a decree of divorce obtained by judicial process or otherwise?

<p>It must be in accordance with natural justice</p> Signup and view all the answers

What is required for a Tribunal to have a significant and substantial connection with the parties?

<p>The Tribunal must have a domicile connection with the parties</p> Signup and view all the answers

Study Notes

Essential Validity of Marriage

  • Essential validity refers to the capacity to marry, considering factors such as age, already subsisting marriage, and consanguinity between the parties.
  • The law governing essential validity is divided into two theories: Dual Domicile Theory and Intended Matrimonial Home Theory.

Dual Domicile Theory

  • Both parties must have capacity under the laws of their domicile to marry.
  • A marriage is invalid unless, according to the law of the domicile of both contracting parties at the time of the marriage, they each have capacity to contract that particular marriage.
  • Example: Brook v. Brook (1861) 9 HLC 193, where the English rules on consanguinity were stricter than in Denmark, and the marriage was invalid under English law.

Intended Matrimonial Home Theory

  • Wherever the parties intend to stay in matrimony, they must have the capacity to marry there.
  • Example: A man cannot marry another man in Massachusetts and expect to be recognized in Ghana.
  • Cases: Mette v. Mette (1859) 1 Sw Tr 416, Brook v. Brook (1861) 9 HLC 193, Sottomayor v. De Barros (No1) No (2), Radwan v. Radwan Fam 35.

Critique of Intended Matrimonial Home Theory

  • Allows parties to evade restrictions imposed by their domicile.
  • Raises questions about the validity of the marriage if the parties never intend to settle in the country where they got married.

Proposal

  • Oppong and Agyebeng propose a flexible approach to save apparently contracted marriages, rather than declaring them void.

Jurisdiction of the English Court to grant a Nullity

  • Similar rules govern the jurisdiction of the English courts to grant nullity decrees under Section 5(3) of the Domicile and Matrimonial Proceedings Act 1973.

Nullity of a Marriage in Ghana

  • Proceedings can be brought to nullify a marriage due to lack of capacity to marry.
  • Section 13 of the Matrimonial Causes Act, 1971 (Act 367) outlines instances where a Decree of Nullity will be granted, including:
    • Non-consummation due to wilful refusal of the respondent.
    • Either party being of unsound mind or subject to recurrent attacks of insanity.
    • The respondent being pregnant by another person at the time of marriage.
    • The respondent suffering from an incurable venereal disease.

Presumption of Death and Dissolution of Marriage

  • If a spouse cannot be found for seven years, they are presumed to be dead under the Evidence Act.
  • Section 33 – Death After Seven Years Absence.

Declaration as to Status

  • When a person gets married, they have a new status (e.g., Mrs.).
  • Section 36: Anytime a decree of divorce is brought from anywhere in the world to Ghana, it must be considered whether it was subjected to judicial process, in accordance with natural justice, and has a substantial connection to the parties or their place of residence.

Recognition of Foreign Decrees

  • Court shall recognize as valid a decree of divorce, nullity, or presumption of death and dissolution of marriage obtained by judicial process or otherwise, which is not contrary to natural justice, and has a significant and substantial connection with the parties to the marriage.
  • The connection can be through domicile or ordinary residence.

Attacking Foreign Decrees

  • Foreign decrees can be refused recognition on grounds such as fraud, where the foreign court was induced by fraud to assume jurisdiction.

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